XA v Minister for Home Affairs

THE APPELLANTS' SUBMISSIONS 20 Counsel for the Appellants, Ms Germov, submits that the Delegate failed to discharge her statutory task because she did not correctly apply the criteria set out in cl 1402 of Sch 1 and Pt 202 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). 21 In that regard, she submits the Delegate had been required to determine with precision the degree of discrimination suffered by the First Appellant. That arises not only from the explicit text of cl 202.222(2)(a), but also in consequence of the Minister's guidelines as found in the Department's "Procedures Advice Manual - Offshore Humanitarian Program - Visa application and related procedures" (Policy Guidelines) which contains the following statement: In assessing this factor, the officer is required to assess the degree of persecution or discrimination faced by the applicant in their home country. The degree of persecution or discrimination involves a spectrum of persecution or discrimination, within which the applicant's individual circumstances will fall, as determined by the degree, that is, level or amount of persecution or discrimination. Officers should not embark on a comparative analysis between the applicant and others in their home country, and the degree of persecution or discrimination is to be assessed in the context of the individual case. 22 Ms Germov submits that the Delegate appears to have accepted the Appellants' claims. Ms Germov notes that the Decision Record does not reveal any adverse findings concerning the credibility of those claims. 23 Ms Germov submits that the Delegate's use of the word "some" as a descriptor of the degree of persecution and/or discrimination the First Appellant had suffered manifestly failed to satisfy the specificity required by cl 202.222(2) of Sch 1 to the Regulations. She submits that, assuming the First Appellant's claims were accepted by the Delegate, the use of the word "some" demonstrates at best a fundamental misunderstanding of the Delegate's statutory task, and at worst a dismissive approach that was inconsistent with the Delegate having given genuine and realistic consideration to Ms XA's claims. 24 Ms Germov submits that the four factors set out in cl 202.222(2) and the Minister's Policy Guidelines make it clear that the "compelling reasons" criterion is the mechanism that allows officers to determine visa applications against the background reality that every year many more persons apply for a Class XP visa than Australia has the capacity to accept. In that regard she cites the Minister's Policy Guidelines, which state: From a pool of many applicants, officer[s] must ensure that the limited resettlement places available each year are offered to those applicants for who there are compelling reasons for resettlement. This is, by necessity, a subjective process … 25 Acknowledging that this task necessarily involves a degree of subjectivity, Ms Germov submits that, nonetheless, it must be undertaken according to law. Ms Germov submits there is nothing in the Delegate's decision or in the documents that were provided to the First Appellant by the Minister pursuant to a Freedom of Information request to indicate that the Delegate had made any notes or observations concerning Ms XA's claims. 26 Neither had the Delegate made any reference to the applicable government settlement priorities as might be understood to have led to the Delegate's conclusion that Ms XA's claims were not compelling enough to warrant special consideration for the grant of the visa she had sought. 27 Ms Germov drew the Court's attention to the primary judge having herself observed during the hearing that "there are no departmental file notes or anything". 28 Ms Germov submitted that the Delegate's peremptory determination of the application, coupled with her failure to demonstrate any active intellectual engagement with the claims and evidence having regard to the applicable criterion in cl 202.222(2), strongly suggested a "cut-and-paste" use of a decision template. It was inconsistent with the Delegate having given the Appellants' application genuine and realistic consideration. In that regard, Ms Germov drew the Court's attention to a statement of the Full Court in W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379; FCAFC 89; 67 ALD 757 at [16] that decisions concerning such refugee and humanitarian visas required "more rigorous examination". 29 In respect of the reasoning of the primary judge, Ms Germov submits that her Honour erred in concluding that the Delegate was not under a legal obligation to apply the Minister's Policy Guidelines concerning the content of her decision, notwithstanding that there had been no direction made under s 499 of the Migration Act 1958 (Cth) (Act). 30 Ms Germov submits that the absence of a direction under s 499 of the Act requiring a decision-maker to apply a particular policy as a matter of law did not mean that the Delegate was at liberty to adopt a laissez-faire attitude concerning the Minister's lawful policy. She submits that delegates exercise the Minister's powers and are obliged to follow a lawful policy provided it is not applied inflexibly without regard to the merits of the case, citing Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634 (Re Drake) at 640-641 per Brennan J. 31 Ms Germov refers to the Policy Guidelines as including the following statements: that "[o]fficers must familiarise themselves" with the policy statements set out in those guidelines (emphasis added by counsel); that while "delegates are not legally obliged to give reasons why a criteria is not satisfied, they should nonetheless ensure that they document their assessment in the decision record"; and that "[d]ecision records should clearly and logically summarise the officer's assessment of relevant factors based on the information available, and be consistent with legislation and policy, in such a way as to stand up to scrutiny by the public or an Australian court". 32 Ms Germov submits that, subject to Re Drake, the Policy Guidelines had to be followed. It was not a matter of personal choice for the Delegate to do so. In support of that proposition, Ms Germov cites the reasoning of Robertson J in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452 (Jabbour) at [89]. 33 Ms Germov submits that the primary judge also erred in law by failing to give any consideration to the other ground of review raised by the Appellants concerning the misapplication of cl 202.222(2). She submits that that ground had been pursued before the primary judge in the context of submissions made before her Honour concerning the Delegate's failure to give genuine and realistic consideration to the application. 34 Ms Germov acknowledges that in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 a Full Court of this Court recently cautioned against using the language of "genuine and realistic consideration" where possible, because it risks embarking on impermissible merits review. However the same Full Court had also held (at [45]): What is required is the reality of consideration by the decision-maker. On judicial review the court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put… Because the court must make its own qualitative assessment, the fact that a decision-maker says they have had regard to a representation does not by itself establish that they have, as a matter of substance, had that regard. (Citations omitted). 35 Ms Germov submits that her Honour failed to recognise that the lack of any substantive attention by the Delegate to the degree of persecution Ms XA had suffered was inconsistent with the Delegate having given the Appellants' application any real consideration. She submits that her Honour's failure to deal with the Delegate's misunderstanding of the statute constituted a jurisdictional error. The primary judge's failure to recognise that to have been jurisdictional error was an appellable error. It required this Court to set aside the decision of the FCCA.

THE MINISTER'S SUBMISSIONS 36 The Minister submits that both a "time of application" criterion contained in cl 202.211(1)(a) of Sch 2 to the Regulations and a "time of decision" criterion contained in cl 202.222(2) were required to be satisfied in order for the Appellants to be granted the visas they applied for. The Minister notes that the "time of decision" criterion was considered by the High Court of Australia in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 (Plaintiff M64). The Minister cites the following paragraphs of the majority judgment (per French CJ, Bell, Keane and Gordon JJ): 30 … Clause 202.222(2) does not state several criteria by reference to which the decision is to be made: it raises only one criterion for the grant of the relevant visa. The criterion is that the Minister (or a delegate) is "satisfied" that "there are compelling reasons for giving special consideration to granting the applicant a permanent visa". As was the case in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, the nature of the decision entrusted to the Delegate was not a "determination" but, rather, "satisfaction". That state of satisfaction must be informed by the factors mentioned in paras (a)-(d), to which the Minister must have regard in making the single evaluation required in order to grant a Subclass 202 visa … 31 In addition, the state of mind required of the Minister (or a delegate) must be reached by reference to "reasons" that are "compelling"; that is, those reasons must "force or drive the decision-maker" "irresistibly" to be satisfied that "special consideration should be given to granting the particular application. Paragraphs (a), (b) and (c) of cl 202.222(2) may be met by an applicant in a general way, but the reasons why that is so may not be sufficiently compelling to satisfy the Minister that "special consideration" should be given to granting the application. 32 The rationale of the criterion of "compelling reasons for giving special consideration" is that there are, indeed, more applicants in the general category of persons described in paras (a), (b) and (c) than can, in the Government's judgment, be settled permanently within the Australian community. … 38 … To give "special consideration" is to distinguish the application for the grant of a visa from the general run of candidates who, individually, might have merit under cl 202.222(2)(a)-(c). The Australian community's "capacity" to provide for the permanent resettlement of such persons who apply for Subclass 202 visas is a factor in the assessment of whether there are "compelling reasons for giving special consideration" to granting permanent visas to the Visa Applicants. This is because cl 202.222(2)(d), in referring to "persons such as the applicant", is naturally apt to include all persons who may qualify for the same visa. 39 An evaluation of "the capacity of the Australian community to provide for the permanent resettlement of persons such as the applicant in Australia" involves an evaluation that is so open-textured that it may be doubted whether a challenge to its correctness is viable at all unless a misunderstanding of this factor on the part of the decision-maker can be demonstrated by what the decision-maker has actually said on that subject … … 56 It may be said that the difficulty of demonstrating that the decision of the Delegate lacked an "evident and intelligible justification" is a virtually insuperable hurdle for the plaintiff, but to say that is to acknowledge the broad and subjective evaluation required in the application of cl 202.222(2) and the difficulty of distinguishing between all the applications which have merit in terms of paras (a), (b) and (c). 37 The Minister submits that a decision-maker, in determining whether he or she is satisfied that compelling reasons exist to justify special consideration in granting a permanent visa, necessarily engages in an "inescapably" subjective assessment. In that regard, the Minister cites McNamara v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1096 at [10], where his Honour Whitlam J observed that reasons "may appear compelling to one person and not to another". 38 The Minister submits that by reason of s 66(2)(c) and s 66(3) of the Act the Delegate was under no obligation to give reasons for her decision. The Minister cites the plurality's reasons in Plaintiff M64 at [25] and [36], which are as follows: 25 It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, "jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power"; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate's letter is "not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". … 36 The plaintiff's scrutiny of the Delegate's letter as if it were a comprehensive statement of his reasons concerned to make findings as to the various matters referred to in cl 202.222(2)(a) to (d) does not expose error by the Delegate. As noted above, by reason of s 66(2)(c) and (3) of the Act, the Delegate was not required to give a statement of reasons in relation to his decision to refuse the Visa Application. It is apparent from the Delegate's letter that the Delegate considered the Visa Application taking account of each of the four matters specified in pars (s) to (d) of cl 202.222(2). The plaintiff cannot invite the inference that an erroneous view has been taken of some material aspect of the matter simply because that aspect has not been expressly addressed and made the subject of findings. (Footnotes omitted, emphasis in original.) 39 The Minister submits that the Appellants' reliance on Hindi v Minister for Immigration and Ethnic Affairs [1988] FCA 549; 20 FCR 1 (Hindi) per Sheppard J at 12-15 is difficult to reconcile with the reasoning of the High Court in Plaintiff M64, and its earlier decision in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [31]-[33] and [66]-[73]. The Minister submits Hindi should not be followed. 40 The Minister submits that the Policy Guidelines are not law, and cannot "establish a jurisdictional limit or obligation". The Minister submits: 14 Contrary to the appellants' submission (AS [31]) a delegate is not under an obligation to "follow a lawful policy", beach of which involves jurisdictional error, or compliance with which may be assumed so as to infer jurisdictional error. Nor does the decision in Re Drake v Minister for Immigration (No 2) (1979) 2 ALD 634, cited by the appellants, support this. There is a difference between saying that: 14.1 a delegate is legally permitted to apply policy in making discretionary decisions (generally true, where that is not inconsistent with the requirements of the Act); and 14.2 a delegate is legally required to apply policy as to the terms in which decisions, already made, are to be notified or explained to persons (not true). (Citations omitted, emphasis in original.) 41 In support of that submission the Minister refers to the observations of French and Drummond JJ in Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 225; 50 FCR 189 (Gray) at 208, where their Honours accepted that Ministerial policy is not to be construed and applied as if it were statute as it merely prescribes guidelines expressed in general language. 42 The Minister submits that the decision of Robertson J in Jabbour does not assist the Appellants. That case concerned a decision not to refer to the Minister a possible exercise of power pursuant to s 351 of the Act to substitute, for a decision of the Tribunal, a more favourable decision. His Honour applied Gray and observed that departure from Ministerial guidelines may result in a decision being set aside on judicial review if the guidelines are misconstrued, rendering the resultant decision perverse by the decision-maker's own criteria (at [89]). In the present matter, the Appellants have demonstrated no such misconstruction of the Policy Guidelines or perversity in the Delegate's decision. 43 Further, the Minister submits that the Policy Guidelines correctly observe that delegates are not obliged to give reasons, but should summarise their assessment of the relevant factors. This is not a requirement; it is expressed "in terms that are neither precise nor prescriptive". That can be contrasted with the specific requirement for a Tribunal to give reasons for its decision, set out findings of fact, and refer to evidence or other material under s 430(1) of the Act. 44 Having made those general submissions, the Minister makes the following submissions directed to each of the grounds of appeal.

Ground 1 45 With respect to Ground 1, the Minister submits that it was clear that the Delegate accepted that the First Appellant was subject to substantial discrimination in DRC, given that she accepted that the First Appellant satisfied the "time of application" criterion contained in cl 202.211(1)(a). The Delegate's reference in the paragraph setting out the factors to which she was to have regard and weigh in reaching her evaluative conclusion, in which she stated that the First Appellant had experienced "some" discrimination, must be read fairly in this context. The Minister submits that the Appellants' contention that the Delegate failed to identify the degree of discrimination with any precision, beyond her having accepted that it was "substantial" for the purpose of cl 202.211(1)(a), must therefore fail. Consequently, this ground must fail. 46 The Minister submits that the Delegate's reference to "persecution" does not invite an inference that the Delegate either misunderstood or misapplied the visa criteria. The Refugee and Humanitarian (Class XB) visa type is divided into five subclasses, four of which are refugee visas and turn on persecution (being those governed by cll 200.222(1), 201.222(1), 203.222(1) and 204.224(1) of Sch 2 to the Regulations). The fifth subclass, which is the Global Special Humanitarian visa subclass (governed by cl 202.222), turns on discrimination. Despite the Appellants having indicated that they only sought to satisfy the criteria for a subclass 202 visa (Global Special Humanitarian), in completing their application they had applied for all Refugee and Humanitarian (Class XB) visas. Accordingly, the Minister submits, it was appropriate for the Delegate to have expressed her conclusion that the Appellants failed to satisfy the criteria for any of the other visa subclasses. 47 Finally, the Minister submits that, even if it had been unnecessary for the Delegate to make explicit findings about whether the Appellants were subject to persecution as well as discrimination in the DRC, "it is difficult to see how that could possibly be a material error that would justify a conclusion of jurisdictional error" (citing by comparison Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252).

Ground 2 48 With respect to Ground 2, the Minister accepts the Delegate was required to have regard to all information in the application pursuant to s 54 of the Act, and that a failure to do so would result in a jurisdictional error. However, he submits that the Appellants' suggestion that the common law provides an additional source of such a duty should be rejected, noting that Subdiv AB of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with. 49 The Minister submits that the expression "realistic and genuine consideration" should be approached with caution, citing a Full Court of this Court in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 (Carrascalao) (Griffiths, White and Bromwich JJ) at [34]: The danger of using that or similar expressions has been emphasised in many cases in other contexts. For example, when the expression has been used in conjunction with the grounds of judicial review relating to the failure to take into account a mandatory relevant consideration, Courts have acknowledged that its use carries the risk of creating "a kind of general warrant, involving language of indefinite and subjective application, in which the procedural and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised" … (Citations omitted). 50 The Minister submits that an applicant bears the burden of demonstrating that a delegate failed to have regard to information in the visa application (citing Plaintiff M64 at [24]), and that the Court will not lightly make a finding that the Minister has not engaged in an active intellectual process (citing Carrascalao at [48]). In that regard, the Minister submits as follows: The Delegate expressly stated that she had considered the application, supporting documentation and other evidence, and there is no evidence that would justify the Court finding that statement to be false. The brevity of the Decision Record does not support an inference that the Delegate failed to give genuine and realistic consideration of the matters raised in the visa application, because there was no requirement for a comprehensive statement of reasons (relying on Plaintiff M64 at [25] and [36]). The Delegate evidently accepted that the First Appellant was subject to "substantial discrimination, amounting to gross violation of human rights" in DRC, because the Delegate accepted that the First Appellant satisfied the "time of application" criterion in cl 202.211(1)(a) of Sch 2 to the Regulations. Nevertheless, it does not follow that the Delegate was obliged to grant the visa in circumstances where she was not satisfied that there were "compelling reasons for giving special consideration" to doing so in light of her concern regarding the capacity of the Australian community to provide for permanent resettlement of persons such as the First Appellant. There is nothing in the chronology of events to suggest that the Delegate would have been unable to read and consider the application material prior to making the decision: the statement containing the First Appellant's claims was 10 pages, and the decision was made seven days after the application was received. The Minister distinguishes these circumstances from those that arose in Carrascalao. The failure of the Delegate to interview any of the Appellants does not support Ground 2. The Delegate was not required to interview the Appellants; the power to do so contained in s 56(1) and s 58(1)(d) of the Act is discretionary. 51 Mr Wood supplemented the Minister's written submissions with respect to Ground 2 in oral argument. He advanced a three step analysis of the Delegate's reasons. 52 The first step is to ask the Court to accept that "bang in the middle" of the first page of the Decision Record the Delegate recorded that "[a]s the applicants have been assessed as meeting the time of application criterion…" and that that in turn led to the Delegate identifying the criterion which remained to be satisfied for the grant of a visa. 53 Mr Wood submits that this reference to the time of application criterion in the middle of the first page of the Decision Record should be understood as revealing that the Delegate was making a decision about both the "time of application" and the "time of decision" criteria simultaneously. He submits that any other reading is implausible and/or not a fair one: As for the possibility that there was some sort of split decision-making process, it seems to me it couldn't lawfully occur, but nor is any suggestion that it - well to the extent that the past tense is used we say this is a classic case of Wu Shan Liang and, in any event, that sentence is capable of being read, in other words as the applicants have been assessed by me. 54 In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 (Wu Shan Liang) it was held (at [31]): … [T]he reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. (Footnotes omitted). 55 Neither party submitted that any material change of circumstance had occurred in the short period between the date of Ms XA's application and the date of the Delegate's decision. Mr Wood accordingly submits that the sentence in the middle of the first page, read in context, should be understood as establishing that the Delegate, having already evaluated Ms XA's application for the purposes of the "time of application" criterion, had also accepted that for the purposes of the "time of decision" criterion Ms XA had suffered substantial discrimination amounting to a gross violation of human rights in her home country. 56 The second step of Mr Wood's analysis was to ask the Court to consider the statement made by the Delegate under the heading "Degree of persecution or discrimination", in which the Delegate found that the Appellants had "demonstrated that they are subject to some degree of persecution or substantial discrimination", in light of the first step in the analysis described above. 57 Mr Wood submits that the precise language and grammar of that statement is to be understood having regard to the circumstance that Refugee and Humanitarian (Class XB) category contains five distinct visa subclasses (subclasses 200, 201, 202, 203 and 204). Of those subclasses, four refer to and require "persecution" (without an adjectival qualifier). One (class 202) refers to and requires an applicant to be subject to "substantial discrimination" in order to satisfy the "time of application" criterion. 58 So understood, Mr Wood submits the Delegate's statement under that heading should be read as applying that distinction. Fairly read, it communicates that the Delegate had concluded the Appellants demonstrated that they were subject to: (a) some degree of persecution (referrable to visa subclasses 200, 201, 2013 and 204); or (b) substantial discrimination (referrable to visa subclass 202) in their home country. The word "some", so understood, does not qualify "substantial". 59 In context, the sentence required a hard disjunctive conveying that, read fairly, the Delegate was stating that the Appellants had established that they were subject to "substantial" discrimination in their home country. 60 The third step is to ask the Court to read the Delegate's explicit acceptance that the Appellants were "subject to some degree of persecution or discrimination" in the surrounding paragraph quoted at [14] as informed by the earlier first two steps. The omission of the word "substantial" in that paragraph should be understood as simply accidental and immaterial.

Ground 2 74 That question, however, is the gravamen of Ground 2. 75 The primary judge observed, at [11] of her Honour's reasons, that the Delegate made no adverse findings in respect of the First Appellant's credibility and accepted that the Appellants satisfied the "time of application" criterion in cl 202.211(1)(a) of Sch 2 to the Regulations. 76 While differing in respect of the conclusions capable of being drawn from that circumstance, both Ms Germov's and Mr Wood's submissions accept each of those premises. I proceed on the basis that they are common ground. 77 The "time of application" criterion contained in cl 202.211 was as follows: (1) If the application does not include a proposal by an approved proposing organisation, the applicant: (a) is subject to substantial discrimination, amounting to gross violation of human rights, in the applicant's home country and is living in a country other than the applicant's home country; … 78 It is uncontentious that "Families of Hope Australia", although eligible to be a sponsor, was not an approved proposing organisation pursuant to cl 202.111 of Sch 2 to the Regulations. Accordingly, the "time of application" criterion provided for in cl 202.211(1)(a) had to be satisfied as at 6 December 2017; the date on which the Appellants' application was lodged. 79 The Delegate's Decision Record is undated. However, the outcome of their applications was communicated to the Appellants under cover of a letter dated 13 December 2017. Both parties accept that it is open to infer that the Delegate made her decision on 13 December 2017. That was seven days after their applications had been lodged. 80 Neither party contends that there is anything in, or extrinsic to, the Delegate's reasons to suggest that the Delegate had had regard to a material change of circumstance occurring in the short period between the date of Ms XA's application and the date of the Delegate's decision. 81 It is common ground that a freedom of information request made by the Appellants for a copy of the Minister's file produced no internal records or file notes concerning the Delegate's consideration of cl 202.222. Neither party submits that an inference that a change of circumstance might explain the Delegate's reasoning is open to be drawn. 82 Ms XA's claims are as set out at [9]-[13] above. 83 Clause 202.222, as at 13 December 2017, was in the following terms: (1) If: (a) the applicant met the requirements of subclause 202.211(2) at the time of application; and (b) the applicant's proposer is, or has been, the holder of a Subclass 202 visa; the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa having regard to the extent of the applicant's connection with Australia. (2) If subclause (1) does not apply, and the application does not include a proposal by an approved proposing organisation, the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa, having regard to: (a) the degree of discrimination to which the applicant is subject in the applicant's home country; and (b) the extent of the applicant's connection with Australia; and (c) whether or not there is any suitable country available, other than Australia, that can provide for the applicant's settlement and protection from discrimination; and (d) the capacity of the Australian community to provide for the permanent settlement of persons such as the applicant in Australia. (3) … It is not suggested that the First Appellant satisfies subcl (1). 84 Mr Wood accepts, and I take it to be uncontentious, that cl 202.222(2)(a) therefore required the Delegate to have "regard to the degree of discrimination" to which Ms XA had been subject to in her home country, together with the three other factors listed in that subclause, to inform the single evaluative decision the Delegate was required to make. 85 In her Decision Record (set out above in full at [14]), under the heading "Degree of persecution or discrimination" the Delegate recorded: The applicants have demonstrated that they are subject to some degree of persecution or substantial discrimination in their home country. Then, having also addressed herself sequentially to the three other factors to which she was required to have regard in informing her ultimate decision, the Delegate's reasoning was as follows: I accept that the applicants are subject to some degree of persecution or discrimination in their home country and have some connection to Australia. Although there is no evidence that there is another country available for the applicant's settlement and protection Australia does not have the capacity to provide for permanent settlement of all applicants at this time. Weighing those factors together, I am not satisfied that there are compelling reasons for giving special consideration to granting the applicant a Class XB visa. … 86 I have noted earlier that Robertson J's reasoning in Jabbour is not authority for the proposition that the Delegate would fall into judicially reviewable legal error by not complying with the Policy Guidelines. However, nothing in Jabbour suggests that the absence of a statutory duty to provide reasons supports the conclusion that a lesser standard of analysis applies to reasons in fact given. Nor do I apprehend that the Minister suggests otherwise: with one qualification. The significant qualification Mr Wood makes to that proposition is that, having regard to the reasoning of the plurality (French CJ, Bell, Keane and Gordon JJ) in Plaintiff M64 at [25], where a decision maker is not required to give reasons for a decision it may be difficult to draw an inference that the decision was attended by an error of law because of what was not said by the decision-maker. I accept that submission. 87 However, as the reasoning that both precedes and follows their Honour's observation at [25] of Plaintiff M64 suggests, I do not take that observation to be intended to exclude the possibility of an inference being drawn from a lacuna in a decision-maker's reasons if those reasons, read fairly without an eye keenly attuned to the detection of error, make it clear that an error of law has been made. It is well settled law that any powers and discretions that a statute confers upon a public official are only to be exercised in a manner consistent with achieving the objects of that conferral. 88 Given that the Delegate's reasons take the form of a decision record, and nothing to the contrary having been advanced on the Minister's part, I infer that that it was the Delegate's intention to document her decision, as the Minister's policy provides, "in such a way as to stand up to scrutiny by the public or an Australian court". But that, in the end, is immaterial. 89 I take it to be uncontentious that if the reasons given for a particular decision reveal that a public official has proceeded on a misunderstanding of, or has exceeded, his or her power, and his or her exercise or purported exercise of power is thereby affected, then the action purportedly taken pursuant to that power will be invalid: see Craig v South Australia [1995] HCA 58; 184 CLR 163 at 179. 90 That principle that an evaluative or discretionary power reposed in an officer of the Commonwealth remains subject to judicial review is long established and legally uncontroversial. As Dixon J said in Shrimpton v Commonwealth [1945] HCA 4; 69 CLR 613 at 629-630: … [C]omplete freedom from legal control, is a quality which cannot ... be given under our Constitution to a discretion, if, as would be the case, it is capable of being exercised for purposes, or given an operation, which would or might go outside the power from which the law or regulation conferring the discretion derives its force. 91 In Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478, Kirby and Callinan JJ more recently observed to the same effect: 69 … To talk of "absolute" judicial discretions, at least where such discretions are conferred by an Australian statute, involves a contradiction in terms. Absolute discretions are a form of tyranny. 70 All repositories of public power in Australia, certainly those exercising such power under laws made by an Australian legislature, are confined in the performance of their functions to achieving the objects for which they have been afforded such power. No Parliament of Australia could confer absolute power on anyone. Laws made by the Federal and State Parliaments are always capable of measurement against the Constitution. Officers of the Commonwealth are always answerable to this Court, in accordance with the constitutional standard. Judges within the integrated judicature of the Commonwealth are answerable to appeal and to judicial review. This does not mean that a discretionary power given to a judge, should be narrowly confined or hemmed about with restrictions and limitations, whether called principles or "guidelines" or anything else. But it does mean that there are legal controls which it is the duty of courts to uphold when their jurisdiction is invoked for that purpose. (Citations omitted.) 92 It is not in dispute that the Delegate accepted Ms XA's credit. 93 Having regard to her accepted claims, the Delegate's reference to Ms XA as having suffered "some degree of persecution of discrimination" is significant. If "some degree" is to be understood as referring to a modest or unevaluated degree of persecution, I would accept Ms Germov's submission that this sentence would demonstrate either a fundamental misunderstanding of the Delegate's statutory task or a dismissive approach on her part which is entirely inconsistent with the Delegate having given proper, genuine and realistic consideration to those claims. 94 I do not understand Mr Wood to have disputed that proposition. 95 The expression "proper, genuine and realistic consideration to the merits of the case" has its origins in the observations of Gummow J (when sitting as a judge of this Court) in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; 14 ALD 291. I accept Mr Wood's submission that Carrascalao is authority for the proposition that this expression should be approached with caution, lest the Court stray impermissibly into merits review. That accepted, Mr Wood accepts that cl 202.222(2) required the Delegate to have regard to "the degree" of discrimination to which Ms XA had been subject to in informing the state of satisfaction (or absence thereof) which the Delegate was ultimately required to form. Mr Wood does not submit that if the Court were to find that that duty was unfulfilled the Court would have strayed impermissibly into merits review. 96 Rather, Mr Wood submits that the Appellant bears the burden of demonstrating that the Delegate committed the error alleged. There must be proof, capable of satisfying the Court on the balance of probabilities, that the Delegate's statutory duty was not lawfully performed. I accept that submission. However, it is uncontentious that proof of an alleged error need not be established by extrinsic material. In some circumstances such an error can be established only from what the decision maker actually said on a subject: see Plaintiff M64 per French CJ, Bell, Keane and Gordon JJ at [39]. 97 The critical issue therefore is whether the Delegate's reasons, read fairly, evidence to the requisite degree that she committed the error Ms Germov alleges, or whether, as Mr Wood submits, they do not. 98 Read fairly, Mr Wood submits, the Decision Record shows that the Delegate did not find that Ms XA had suffered "some degree" of persecution or discrimination as would refer to only a modest or unevaluated degree of such harm. Rather, read fairly and as a whole, the Delegate's reasons reveal that the Delegate accepted that Ms XA had suffered "substantial discrimination". Mr Wood submits that such a conclusion, while terse, was sufficient to discharge the Delegate's statutory duty to have regard to the degree of discrimination to which Ms XA had been subject. 99 I have set out above at [51]-[60] the three step reasoning that Mr Wood submits entitles this Court to reject the proposition that the Appellants have discharged their burden of proof. However, there are difficulties regarding the plausibility of each of those three steps.

Step Three 115 Step three requires the Court to import into the language employed by the Delegate when setting out the considerations she expressly stated she would weigh together, the word "substantial" before the word "discrimination". Such a "reading in" is necessary because Mr Wood accepts that read in isolation, the text involves only a finding of "some discrimination". Only if the inferences from steps one and two provide a plausible basis for step three is it open to argue that a fair reading of the Delegate's decision as a whole requires the conclusion that the Delegate was not thereby using "some discrimination", to refer to either a slight amount or an unquantified degree of discrimination. 116 The language used by the Delegate beneath the heading "Findings and Reasons" is as follows: I accept that the applicants are subject to some degree of persecution or discrimination in their home country and have some connection to Australia. Although there is no evidence that there is another country available for the applicant's settlement and protection Australia does not have the capacity to provide for permanent settlement of all applicants at this time. Weighing those factors together, I am not satisfied that there are compelling reasons for giving special consideration to granting the applicant a Class XB visa… Clearly, the Delegate in the first paragraph is stating the findings she intends to rely upon with respect to the four factors she has previously discussed in order to inform her final evaluative conclusion. 117 The word "some" in that context is used by the Delegate to qualify not only the degree of persecution or discrimination to which she accepts the Appellants are subject in their home country, but also their degree of connection to Australia. Mr Wood does not suggest that there is any contextual reason to suggest that the Appellants' degree of connection to Australia was greater than minimal. It would be futile to suggest that a decision is to be construed as a statute. Nonetheless ordinarily, even in speech, the same word when used in the same context will convey the same meaning. 118 In my view, the reasoning Mr Wood advances in support of steps one and two provides an excessively weak and uncertain basis on which to read the language at step three in the manner for which he contends. 119 To the contrary, I am satisfied that, on a fair and plain reading, what the Delegate stated at that critical juncture is good evidence that the error Ms Germov submits was made, was in fact made. 120 At the level of principle Mr Wood accepts that if the Appellants can persuade the Court that they have discharged their burden of proof so as to show that the Delegate did not have lawful regard to any one or more of the four factors specified in cl 202.222, or misconstrued them, that would be jurisdictional error. On the balance of probabilities, I am satisfied that the Court should draw that conclusion. 121 Contrary to the Minister's submissions, I am satisfied that a plain and fair reading of the Delegate's reasons demonstrates that the Delegate failed to engage with the statutory task she had a duty to fulfil. The findings the Delegate made, as are referred to at [116] above, in the absence of any finding of want of credit, demonstrate that the Delegate either misconstrued the statutory provision or wholly failed to give realistic consideration to "the degree" of persecution and discrimination to which Ms XA had been subject in the DRC. 122 The statement that the Delegate accepted that the Appellants had suffered "some degree of persecution or discrimination in their home country" would apply to almost every applicant for such a visa. That conclusion involved the Delegate making no assessment of "the degree" of a critical factor that her statutory task required her to undertake. 123 Her duty was to reach (or decline to reach) a state of satisfaction informed by the four factors to which she was required to have regard pursuant to cl 202.222(2) of the Regulations. Inevitably, that required a subjective (or discretionary) conclusion. However, as Mr Wood accepts, her evaluative conclusion was required to be informed by a valid consideration of the four factors feeding into it. 124 Ms XA had described a horrific account of persecution, including the killing of her husband and her rape in police custody in the DRC. By no measure of reason could the degree of that persecution be assessed by the Delegate as "some" in the sense of it being slight. If the Delegate instead used this word in its other ordinary sense, namely to mean an undetermined amount, the use of such a descriptor ran counter to her duty to have regard to the degree of discrimination that the First Appellant had suffered. Either would be a jurisdictional error. In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, French CJ reasoned as follows (at [24]): 24 Every discretion has to be exercised, as Kitto J put it in R v Anderson; Ex parte Ipec-Air Pty Ltd, according to "the rules of reason". His Honour, paraphrasing Sharp v Wakefield, said: "a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself". (Citations omitted.) 125 I respectfully adopt the phraseology of Kitto J (adjusted to reflect less gendered times) cited by his Honour as to the test which applies. The Delegate did not inform herself of one of the four factors upon which her evaluative and necessarily subjective task depended. She therefore could not lawfully conclude her statutory duty within the limits within which a person, competent to discharge the duties of her office, was required to confine herself. 126 The Delegate's statement that she arrived at her conclusion "weighing these factors together" is of no legal consequence if one of those factors was not lawfully addressed. It is not to indulge in over-zealous judicial review for a court to draw on the language actually used by a decision maker as it appears on a plain reading, in preference to a post-hoc analysis of the text that seeks to explain what the language might mean if the decision maker is assumed, a priori, to have carried out his or her statutory duty. There is nothing in the Delegate's reasons to suggest that she made a lawful finding as to the degree of the persecution and discrimination which Ms XA had suffered in the DRC. 127 In Plaintiff M64 the plurality reasoned at [36] that a plaintiff was not entitled to invite the inference that an erroneous view had been taken of some material aspect of the matter simply because that aspect has not been expressly addressed and made the subject of findings. This case is the converse of that. The Minister cannot invite an inference that a correct view has been taken of some material aspect of a material aspect of the matter where the reasoning advanced in support of that inference is too weak and uncertain for a court to place confidence in it. 128 I am satisfied that the Appellants have discharged their burden of proving, on the balance of probabilities, having regard to what the Delegate actually said, that the Delegate fell into jurisdictional error. 129 In Plaintiff M64 the plurality referred at [54] to the critical evaluative task conferred on a Delegate. It noted: The importance of avoiding individual predilection and inconsistency in making choices between a large number of generally qualified candidates by the application of the open textured criterion of 'compelling reasons for giving special consideration' is readily apparent. 130 That observation was made in the context of the Court rejecting a submission that the Minister's policy guidelines had been inflexibly applied. In the present matter the primary judge, and the Minister's submissions, proceeded on the basis that there was no legal duty on the Delegate to comply with that policy. That can be accepted, but there is no sound jurisprudential basis from which to infer the conclusion that an unreasoned outcome can be justified. 131 Unlike the circumstances in Plaintiff M64, the Delegate did not set out the scale of demand for unmet offshore protection visas or the capacity constraints Australia might have in responding to the large number of generally qualified candidates who might apply for a visa of this class. Notwithstanding this, it may be accepted that demand is likely to be significantly greater than the number of places available. Yet in the absence of the Delegate acknowledging and applying the Minister's policy framework, in circumstances in which the court below, correctly, accepted that this in itself was not a legal error, there was nonetheless no jurisprudential reason for that court not to identify reviewable error having regard to the Delegate's facially erroneous reasoning. The policy is undoubtedly correct to state that a Delegate's decision must be consistent with legislation, in such a way as to stand up to scrutiny by an Australian court. 132 As Plaintiff M64 establishes, the bar is far from high. The reasoning of both the plurality and Gageler J writing separately takes account of the high volume of applications. There is no warrant for this Court to condone a circumstance where those quite modest requirements have not been met. 133 My reasoning should not be understood as rejecting that it is possible the Delegate proceeded as Mr Woods submits she did. However I am satisfied that a facially obvious reading of those reasons is to be preferred, on the balance of probabilities, to one which depends on the chain of reasoning Mr Wood advanced. 134 If it needs be stated, my reasoning involves no finding that the Delegate was other than honest: Kitto J is to be understood as stating a test against which a conclusion might be measured. The application of that test does not require the Court to doubt (and I do not) the Delegate's honesty. 135 Having established to the requisite standard that the Delegate did not undertake the statutory task of determining "the degree" of discrimination to which Ms XA was subject, it is impossible to reason that the Delegate could thereafter validly conclude the task which the plurality of the High Court had described as her duty in Plaintiff M64. 136 As the reasoning of a Full Court of this Court in Singh v Minister for Home Affairs [2019] FCAFC 3 illustrates, the ultimate concern of judicial review is with the identification of jurisdictional error: a public official not performing the function entrusted to his or her, or not performing it in an authorised way. I am satisfied that such error has been established. 137 I would uphold Ground 2.

Leave to rely on a ground raised in oral argument not contended for in the Court below 138 During the course of oral argument, faced with the Court's observations that the reasoning of Roberson J in Jabbour might not sustain her submission that the Delegate was obliged to comply with the Minister's policy, Ms Germov sought to rearticulate her submission on the premise that the Delegate had at least purported to comply but had not complied with the terms of that policy. 139 Ms Germov was given several opportunities in the course of argument before the Court to reformulate this submission with some precision. She failed to achieve that objective. Mr Wood, consistently with the obligations of counsel representing a model litigant, did not object to Ms Germov being permitted to advance a proposed additional ground of appeal so premised following the hearing. This was so notwithstanding it had not been contended for in the court below, and that notice had not been given prior to the hearing. 140 In the event, Ms Germov advanced a proposed additional third ground of appeal formulated as follows: Ground 3 Pursuant to the orders of the Court made on 21 August 2019, the Appellants seek leave to put forward an additional ground of challenge to the decision of the Respondent's delegate as follows: 3. Further or in the alternative to grounds 1 and 2 of the Notice of Appeal, the Respondent's delegate misapplied the Respondent's policy. Particulars The delegate purported to apply the Respondent's policy in finding that the Appellant suffered substantial discrimination at the time of application as required by clause 202.211(1)(a) but failed to specify the degree of discrimination the Appellant suffered at the time of decision as required by clause 202.222(2)(a) and the Respondent's policy: (a) The delegate's omnibus approach in finding that the Appellant satisfied the time of application criteria in subclause 200.211(1), 201.211(1), 202.211(1), 203.211(1) and 204.211(1) indicates that the delegate did not actually turn her mind to the specific eligibility criteria for these subclasses which would be demonstrated in the decision record by reference to discrimination in subclause 202.211(1) rather than persecution. (b) The delegate stated that the Appellants suffered "some" persecution or discrimination when there was no evidence of any change in the Appellant's circumstances from time of application to the time of decision which raises a strong inference that the application was decided on the day the decision record is dated in that (i) The full copy of the Respondent's Departmental file appended to the affidavit of 22 August 2019, provided pursuant to the Appellant's Freedom of Information request, contains no indication that the delegate took any action concerning the application between the receipt of application and the decision; (ii) Particular (d) to ground 1 in the application for review in the Court below placed the Respondent on notice of this position and the Respondent elected not to lead evidence demonstrating any work or consideration of the application by the delegate prior to the date of the decision and hence the Court should infer that no activity or consideration occurred in relation to the visa application before the date of the decision. (c) The absence of any evidence of any activity or consideration of the application before the date of decision, the brevity of the decision record, and the absence of any evidence for the conclusion reached at the time of decision (whether in the decision record itself or any internal Departmental file records) leads to the inference that the delegate departed from the policy for no discernible reason or misconstrued what was required for her to discharge her statutory task. (d) Policy required the decision record to clearly and logically summarise the officer's assessment of relevant factors based on the information available, and be consistent with legislation and policy, in such a way as to stand up to scrutiny by the public or an Australian Court [AB-197] whereas the decision record contains no summary of the claims or evidence presented. (e) Policy required the delegate to consider whether claims of discrimination amounted to substantial discrimination amounting to a gross violation of human rights by exploring a number of factors set out at AB 234 at paragraphs 1-7. There is nothing on the Respondent's Departmental file or in the decision record to indicate that the delegate referred to any of these factors in the assessment of the Appellant's claims. (f) Policy required delegates to determine the degree of discrimination by reference to the level or amount of discrimination: AB 236 under the subheading "The degree of persecution or discrimination", whereas the delegate stated that the Appellant suffered "some' discrimination at the time of decision which is not the quantification required by the policy and the language of the criterion. (g) The statement in the delegate's decision record that Australia has "limited capacity for humanitarian resettlement" (AB 166, paragraph one), does not refer to the considerations set out at AB 237 under the subheading "Australian community's capacity"; at AB 238 at paragraphs 1-3; and AB 239 under the heading "Regional and global priorities" which raises the inference that the delegate merely paraphrased the criterion in subclause 202.222(2)(d) without the actual assessment required. (h) Section 54 of the Migration Act 1958 (Cth) obliged the delegate to have regard to all of the information in the application (as summarised in the attached table) which required the Delegate to actively engage with the evidence and information in accordance with the Respondent's policy but neither the decision record nor the Respondent's Departmental file give any indication the delegate undertook the qualitative and quantitative assessment required by law and policy which in turn meant that the delegate was not in a position to lawfully discharge her statutory task of assessing whether there were compelling reasons for giving special consideration to the grant of the visa. 141 I would decline to grant leave to permit the Appellants to rely on that additional proposed ground. It is only in exceptional circumstances that such leave should be granted: Coulton v Holcombe [1986] HCA 33; 162 CLR 1. 142 It may be accepted that the form of the Decision Record might be thought to support an inference that the Delegate had purported to apply the Policy Guidelines. However, the Appellants' proposed new ground advances that proposition only as a particular. 143 The balance of the ground as particularised puts forward a range of additional propositions which go well beyond those foreshadowed by Ms Germov during the hearing. If the Court were to grant leave it might be required to determine a matter of considerable consequence in circumstances in which it would have been open, at least theoretically, to the Minister to have advanced evidence in the court below as to the soundness or otherwise of one or more factual premises. Those complex contentions not having been put in issue in the court below, notice not given until after the close of oral submissions and the terms of the notice given extending beyond that foreshadowed, it would be inappropriate for this Court to grant leave.

[1988] FCA 549

[1994] FCA 225

(1986) 159 CLR 656

(2015) 258 CLR 173

(1994) 50 FCR 189

(1989) 86 ALR 435

(1990) 23 FCR 162

(1996) 185 CLR 259

(2017) 252 FCR 352

(1986) 162 CLR 24

[2019] FCAFC 112

[2002] HCA 22

[2018] FCAFC 225

[1987] FCA 713

[2018] FCAFC 216

[2019] HCA 3

[1945] HCA 4

[1996] HCA 6

[2019] FCA 452

[2004] FCA 1096

[2011] HCA 1

[1979] AATA 179

[2019] FCAFC 3